Stop Dithering, Holder

01.31.10 10:39 PM ET

The too-hot-to-handle Khalid Sheikh Mohammed travelin' road show has been run out of Gotham. The cover story is that a vacillating mayor, succumbing to pressure from commercial and residential neighbors, convinced both the White House and Justice Department to abandon the resolute plan to try the accused terrorist at the federal courthouse in lower Manhattan. The more likely story is that Attorney General Eric Holder blinked in the face of mounting criticism and the White House used the Bloomberg about-face (real or not) to escape from New York.

Although there is yet to be an official announcement, the widely reported alternative is to hold the KSM trial on a military base or in a federal prison. There has also been speculation about trying the case at a federal courthouse outside of New York City, with specific mention of the courthouse in White Plains. These alternatives are fraught with their own problems.

The present waffling by the Justice Department and other officials on matters such as location, logistics, security, and cost speaks eloquently in support of abandoning the present plan altogether.

The federal court in White Plains, like almost all outlying courts, is particularly unsuited to meet the security issues that are freighted along with a terrorist trial. The closest jail, from which the defendant-inmates would need to be transported daily, is 20 miles away in Valhalla. The courthouse itself sits alone on a vulnerable corner bordering streets that would be nearly impossible to close.

A federal prison or military base would surely meet security concerns but the attendant problems would reach constitutional proportions. The Sixth Amendment guarantees a public trial, a right that the courts do not take lightly. Only last month the Supreme Court, in
Presley v. Georgia, reinforced the right to a public trial and reversed a criminal conviction where a lone spectator, the defendant's uncle, was excluded from the courtroom during jury selection. What arrangement can be made to accommodate the defendant's right to an open trial as well as the public's right to attend a trial if the proceeding is held within a prison? How is the plan to use a prison or military facility even being contemplated without addressing this core constitutional issue?

Trying the KSM case in a prison or on a military base presents an even larger question. The whole point of trying accused terrorists in a civilian court is to make it plain to "friend and foe alike" that terrorist acts, no matter how heinous, cannot shake the foundation of our republic nor its criminal justice system. Holding the trial at a military base or prison is so far outside conventional process that the intended message is defeated. Terrorist organizations would celebrate the fact that we have capitulated to the fears that they intended to instill.

The search for alternative venues will only strengthen the point originally recognized by both the federal and local government: The federal court in Manhattan is particularly well-suited for terrorist trials, as shown by a track record of successful prosecutions, including the prosecution of those involved in the 1993 plot to bomb the World Trade Center. In the federal courthouse the requisite secure facilities are already in place. The federal jail is only steps away, and those steps are taken through an underground tunnel with no public access. The jail itself is one of the most secure in the country, with its claustrophobic "terrorist floor," where inmates are kept in some form of deep lock 24 hours a day. And, of course, a trial in the Manhattan federal courthouse, subject to appropriate security measures, would be open to the public.

But make no mistake about it. A trial of KSM and other designated detainees accused of terrorist acts at the Manhattan federal courthouse will carry with it an enormous price, measured not only in dollars. Lives will be disrupted. Several federal judges, as well as prosecutors who were previously involved in terrorist cases, lived for years under the complete protection of the U.S. Marshals Service. Lawyers and litigants in unrelated cases will face a huge inconvenience upon approaching and entering the courthouse. And it cannot be disputed that the security measures necessary to prosecute KSM will be felt, like shockwaves, through lower Manhattan. So the real question is not whether another federal court or another federal facility would be better suited; the real question is whether civilian authority should have to bear the burden of prosecuting non-citizen terrorists.

The present waffling by the Justice Department and other officials on matters such as location, logistics, security, and cost speaks eloquently in support of abandoning the present plan altogether and holding these trials exclusively before constitutionally constituted military tribunals at Guantanamo Bay. We would first need to recognize that Guantanamo is not the Guantanamo of George W. Bush. While President Obama has not met his promise to close Guantanamo, the facility has become more bearable since he took office. The torture has ended and the inmate's living conditions have been substantially improved. A military tribunal under the watch of the current administration is not the military tribunal of the Rumsfeld-Cheney era. There is no longer cause to believe that military trials will be unfair or that the accused terrorists will not get the process to which they are due.

Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. Mr. Shargel, a practitioner-in-residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."